NOTES OF RECENT CASES not committed by either of the conspirators or in pursuance of the conspiracy at all, but was the act of the occupant of the house in opposi tion to the conspiracy and entirely contrary to the -wishes and hopes of the conspirators. The only other case directly in point is that of Butler v. People, 18 N. E. 338, where the Supreme Court of Illinois made the same holding on a practically identical state of facts. Commonwealth v. Campbell, 7 Allen, 541, also contains a -holding that where defendants conspired to create a riot and in quelling it the officers accidentally killed a bystander, defendants were not guilty of murder. This decision seems inconsistent with the gen eral doctrine that one who puts another wrong fully in a dangerous position is responsible for the results of a reasonable effort on the part of the latter to escape from the consequences: thus one who gives a wound is responsible for the death of the victim under the surgeon's knife, even if the surgeon is unskilful, during an operation deemed advisable on account of the wound. Reg. v. Davis, 15 Cox Cr. Cas. 174; Peo. v. Cook, 39 Mich. 236; Com. v. Eisenhower, 181 Pa. 470. So one who frightens another wrongfully is responsible if the latter in trying to escape injures himself or an other. Rex. v. Evans, i Russ. Cr. 656; Rex v. Hickman, 5 C. & P. 151; Reg. v. Pitts, C. & M. 284; Reg. v. Martin, 8 Q. B. Div. 54; Reg. v. Halliday, 61 L. T. Rep. 701. Here the owner in a lawful attempt to extricate himself from the violence inflicted by the defendent, killed another. The cases of Do. Com. v. Hare, Whart. Horn. App. 477, and possibly Darlington v. S., 40 Tex. Cr. 333, support the con viction, and Gore's Case, 9 Coke, 8ia goes much further. The court finds a certain absurdity in holding the defendant. It may fairly be suggested that the absurdity consists in holding that though a human life has been lost as the result of defend ant's malicious violence, there is no murder com mitted. J- H. B. These cases are to be distinguished from a case when in the perpetration of the criminal act the defendants voluntarily place an innocent third person in such a position that he is likely to be killed by the person opposing the unlawful act. Such a case is Taylor v. State, 41 Tex. Cr. Rep. 564. In this case the defendants in robbing a train com pelled the fireman to leave the cab and go with them to the express car " to have the . . . express mes senger open up." A passenger on the train shot at the defendants, and in an exchange of shots the fireman was killed by a shot from the passenger. Judgment on a verdict of murder was affirmed. William E. Mikell.
CRIMINAL LAW. (Larceny — Property Sub ject to Lien.) Wash. — In State v. Nelson, 78 Pacific Reporter, 790, defendant is convicted of the crime of burglary in stealing his own horse. The horse was in possession of a livery stable keeper, who had boarded it, and had a lien on it for the amount of his claim. The court holds that while one cannot be guilty of stealing his own property when it is rightfully under the owner's immediate dominion and control, yet one may be the general owner of a chattel while another may have a special interest or property in it, together with the right to its immediate possession, and if, under such circumstances, the general owner takes the property from the person rightfully in possession, he will be guilty of larceny. The theory of the law, says the court, is that the person in possession has added a certain amount of value to the owner's prop erty, which added value becomes property be longing to the lienor, and secured by possession. The wrongful taking of this added element of value seems to be the crime. That one may be guilty of larceny of property belonging to himself but in the possession of another was recognized as far back as 1429 in an anonymous case, Year Book, 7 Hen. vi, 41, pi. 18, when it was said, "If I bail certain goods to you to keep and afterward I feloniously retake them, I shall be hanged, notwithstanding the property was in me." This doctrine has been reaffirmed in a number of modern cases, as in Henry v. State, no Ga. 750. The theory is that the bailee has suf ficient property in the article bailed to fulfil the definition of larceny as the taking of the property "of another." The theory of the instant case that the bailee had, by feeding the horses stolen from him by the owner, added that much to the value of the owner's property, and that added value became property in himself, seems at fault. If that is the basis of defendant's guilt it would seem that the indictment should allege the larceny to be, not of the animals, but of the "added value" of the horses. At any rate the adjudged cases do not support the theory of the court in this case, for in many of them nothing had been added to the value of the property by the bailee. William E. Mikell. This case is in accord with the well-established principle of law that the person having the gen eral property in goods may be guilty of larceny in'taking them from the possession of one who has a special property in them. A. C. B. The conclusion reached by the court seems clearly correct. It may be doubted, however, if
